Frequently Asked Questions About Family Law
- Must divorces go to trial or get determined by a judge?
- Does New Jersey recognize legal separations?
- How is alimony decided in New Jersey?
- What happens when custody of the children is in dispute?
- How is child support determined?
- What does equitable distribution mean and how are assets and debts divided in divorce?
- Can I file for a “no fault” divorce?
- How long does it take to get divorced?
- How much do divorce actions cost?
- Is Mediation right for my case?
- How will the new alimony reform statute affect my divorce?
No. Almost all divorces settle prior to trial. It is estimated by the courts that roughly 98% of all divorces settle before a trial. The New Jersey Supreme Court has promulgated rules that now require divorce attorneys to advise their clients of complimentary dispute resolution, including private divorce mediation and arbitration. The court has also established procedures to bring the parties and their attorneys together, to aid in the settlement process. These procedures include the Matrimonial Early Settlement Panel, and Economic Mediation. Trials are very costly financially and emotionally, and therefore the courts encourage and foster settlement.
No. New Jersey does not recognize parties as being “legally separated.” Until a complaint for divorce is filed, you will be considered married. However, the court will recognize negotiated and agreed-upon separation agreements. If you and your spouse elect to separate, and remain separated without filing for divorce, it is recommended that you enter into a written agreement. In the event one of you were to apply for a divorce later on, the agreement will likely be enforced by the court, resulting in substantially less legal fees, and time for the divorce action to be finalized.
There is no “formula” or “guidelines” for determining alimony. There are four different types of alimony, e.g. open durational alimony, limited duration alimony, rehabilitative alimony, and reimbursement alimony, and 12 factors the court must consider in determining which type of alimony applies in a particular case. Because most divorce cases settle, matrimonial attorneys as well as mediators must analyze the facts of each case, and apply the alimony factors accordingly. The length of the marriage, the disparity of income between the parties, child rearing responsibilities during the marriage, ability to pay, the earning capacity of each party, age, education, health, assets received in the settlement, and standard of living enjoyed during the marriage, are a few of the factors applied in all alimony cases. Alimony is taxable to the receiving spouse and deductible by the paying spouse. Alimony may be modified in the future, upon a showing of substantial change of circumstances.
New Jersey recognizes legal custody and residential custody of children of divorce. Legal custody, addresses the parents’ rights to be involved in major decisions affecting the health education and general welfare of the children. Generally, parents will be awarded or will agree upon joint legal custody. Exceptions to this rule, is sole legal custody, which may be awarded when there is an active final restraining order between the parents and there is evidence that the parents cannot act amicably to co-parent the children. Also, sole legal custody may be appropriate, when a parent is incarcerated or there is evidence of habitual substance abuse. Residential custody addresses with whom the children will reside. Custody arrangements can be very structured or flexible based on the agreement of the parties. In a contested custody case, the standard applied by the court to determine residential custody is the “best interest of the child.” The courts today, strive to ensure that both parents have a full and continuous relationship and parenting arrangement with the children. The family court will assist the parties in custody mediation. In the event the parties cannot reach an agreement as to custody, or parenting time, then an expert or experts, may be engaged to assist in the custody and parenting time determination. Custody cases can be extremely costly, and emotionally draining on the parties and the children. It is always the preferred route that the parties reach an amicable custody and parenting time plan, taking into consideration the children’s needs and best interests.
Except in extreme income cases, child support is calculated using the New Jersey Child Support Guidelines. A sole parenting worksheet will be used, where one parent has less than 28% of the overnight parenting time in a year. A shared parenting worksheet will be used where one parent has at least 28% of the overnight parenting time in a given year. There are exceptions to this rule, depending on the incomes of the parties, and other factors. Once the parties’ incomes are determined and the amount of overnight parenting time is established for each parent, a Child Support Guidelines Worksheet is prepared to determine the appropriate level of child support. In cases where the parties’ combined net weekly income exceeds the Guidelines threshold, statutory factors are applied to determine the appropriate level of child support. Child support may be modified based on a showing of changed circumstances, including a permanent increase or decrease of income. Also, child support is reviewable when a child commences college. Child support terminates upon the emancipation of the child. Emancipation is a defined term, generally occurring when the child graduates college, or in the event the child does not go on to college, after graduating high school. When child support terminates for one child, the New Jersey Child Support Guidelines must be re-run. In this regard, a child support obligation is not apportioned equally between each child. Rather the child support obligation is established for the first child, and then incremental increases in support are awarded for each additional child.
New Jersey is an equitable distribution state, which means the distribution of assets and debts in a divorce action must be fair and reasonable based on the facts of each particular case, and applying statutory factors. As a general rule, if a couple has been married for a long period of time, the marital assets, including real estate, personal property and retirement accounts will be divided equally between them. Debts are generally allocated equally, but not necessarily, depending on the incomes of the parties, and the distribution of assets at the time of divorce. Because New Jersey is a “no fault” state, the fault of a party (the grounds for divorce, i.e. adultery, extreme mental cruelty, irreconcilable differences) will have no bearing on the division of assets in a divorce action. The exception to this rule is where a party can prove that a spouse intentionally or fraudulently dissipated or failed to disclose an asset in contemplation of the divorce, or during the divorce action. In New Jersey, any assets which were owned prior to the marriage, and kept excluded from the marital estate, as wells as third party gifts and inheritances, if maintained in individual names, are not subject to equitable distribution.
Yes. Effective January, 2007, the New Jersey Legislature added “irreconcilable differences” as a ground for divorce in New Jersey. To meet the requirements, a party need only allege that they have experienced irreconcilable differences which has caused the breakdown of the marriage for a period of at least six months, and that there is no reasonable prospect of reconciliation. Other grounds for divorce are extreme mental cruelty, adultery, physical desertion for a period of 12 months, constructive desertion in which a party has refused to be intimate with the other for 12 months, habitual drug or alcohol use, institutionalization for 24 months, imprisonment for 18 months, deviant sexual conduct, and separation from the same residence for 18 months. Extreme cruelty is defined as any physical or mental act which either endangers the health or safety of the other spouse or makes it unreasonable to expect a person to continue to remain in the marriage.
The goal is for a couple to be divorced as quickly as possible. In litigated cases, the court’s goal is for the parties to be divorced within one year of the filing of the complaint for divorce. However, parties who engage a mediator to aid in the negotiation of a settlement can be divorced in substantially less time. The fact remains that the parties themselves, whom they chose as an attorney, and their conduct throughout the divorce action, dictates how long it takes to get divorced. The more reasonable and open the parties are to negotiation, disclosure of assets and debts, and compromise, the faster they will get divorced. When a couple is unable to settle their issues, then a judge must make the final decisions at trial. Trials can take weeks or months to conclude because of the backlog of cases in each county. A successful divorce is a divorce settlement where both parties are able to live with their settlement terms. Nobody “wins” in a divorce action, per se; however, if parties can move forward with their lives knowing that they accepted the terms of settlement as a fair and reasonable resolution of the issues, then this is a successful divorce.
Simply put, the cost of a divorce is dictated by the parties. When parties choose litigation as a means to divorce, each party must hire an attorney and each must pay a retainer, as well as the attorney’s hourly rate, once the retainer is exhausted. If mediation is chosen, only one retainer is paid, and for the most part, the divorce action will cost substantially less. When parties are able to work together, come together in the negotiation process and reach compromises, the cost of divorce can be minimized. However, if a divorce action commences with immediate court intervention for temporary support and/or custody, or the divorce action continues with conflict, multiple court applications, or if one of the parties fails to provide financial information or documents, the divorce action can become very costly. The facts of each case and the parties’ conduct throughout the divorce action will directly determine the cost of your divorce.
Whether you choose divorce mediation, as an alternative to litigation, is a decision you should make based on the facts of your case. If there is an active final restraining order between the parties, then mediation cannot take place. Also, if you feel that you have no bargaining power in the negotiation process, or you feel that you do not have the ability to voice your opinions and positions in the negotiation process with your spouse, then mediation might not be the best process for you. However, simply because your spouse may have handled the family finances during the marriage, should not exclude you from the mediation process. A good mediator works with the clients to ensure that all assets, debts and income sources are disclosed and understood. The issues necessary for settlement are negotiated step-by-step, so that each party has a full understanding of the income, assets and debts of the marriage, and how each should be allocated between the parties in an equitable manner. When custody and parenting time are at issue, the mediator helps to guide the parties toward a fair custody and parenting time plan that serves the children’s best interest. Just like divorce litigation, when financial or custody experts are needed to aid in the negotiation and settlement process, these experts will be engaged in the mediation process. Mediation is generally by far less costly than divorce litigation, and takes less time. The goal of mediation is to aid the parties in resolving their divorce or family law related conflicts in a more amicable fashion, to open up communication between the parties, to foster co-parenting arrangements, and to insulate the parties and the children from the harsh consequences of the adversarial process. Attorneys may and should be consulted in the mediation process.
On Sept. 10, 2014, New Jersey enacted a new Alimony Reform statute N.J.S.A 2A:34-23a (the Alimony Reform Act or “Act”). Visit our Alimony Reform Statute page to read some common questions being raised by divorcing and divorced parties.